The Sunday Independent reported yesterday on the infamous “Kilkenny trust” that supposedly allows you to scrub a property free of bank debt, as if by magic. It was reported earlier in the Summer that certain business people, including Bill Cullen, were using the mechanism.

Given the privacy of the operation it is difficult to ascertain from news reports what has been going on but, helpfully, Karl Deeter attended a presentation about the scheme and has blogged about it here. I am not a trust specialist but, in my professional opinion, it looks mad.

I had a few questions of my own reading the post:

Why are they recruiting people to enter into the trust? Usually, legal and accounting mechanisms are put in place by a combination of accountants and solicitors to help their clients achieve a certain goal. It is unusual for non-professionals to go about recruiting people to join a scheme like this and, as Karl points out, the don’t seem to have professional indemnity insurance to protect clients when things go wrong. However, I note that they charge a fee themselves.

They get you to set up “a private trust in private”. What does the second use of the word private achieve?

What is meant by getting a notary to create a “Court of Record”? I’ll tell you: nothing. It makes no sense. A court of record is a court, and notaries don’t “create” courts. In fact, the only notaries in Ireland are notaries public who are only involved in transactions with an international dimension. There is no international dimension to these transactions so a notary should not be involved. The most an Irish notary public might do is verify some document or signature but, again, a notary public only does this for use abroad and a solicitor or commissioner for oaths would suffice.

They say that only your folio number goes into the trust. This makes no sense. A folio number is a record number for registered property and has no life or value apart from the property. You couldn’t sell or rent your folio number separately from the property, so how could you transfer it into a trust on its own?

Most of the rest of what they say involves banking and mortgages and Karl has pointed out that it doesn’t add up. I’m sure other solicitors and barristers would notice flaws in the proposal by reading his post (comments welcome here too). Karl reaches the sad but unavoidable conclusion:

This has all of the hallmarks of something that is either ‘too good to be true’ or perhaps ill thought out and where the absence of a challenge to date is being taken as evidence that ‘it works’ which is not how the legal system operates. The moving of an asset to a trust doesn’t mean a legal charge suddenly doesn’t exist, it doesn’t mean that there was never a lien or a contract between two parties, if using trusts to stop creditors was that simple we probably would have heard of it before now.

Of the people at the meeting none of them seemed highly literate financially, several disclosed that they were borrowers of sub-prime lenders and the common thread was that they were all vulnerable and perhaps willing to believe something too easily, because I have learned from experience that when a person is drowning that even if you throw them a rock and say it will float that they are willing to give it a try.

Labour is committed to tackling and eradicating domestic violence. We will protect funding for frontline services, such as family refuges …

That was 9 months ago. Three weeks ago, the Minister for Justice said in the Dail:

all reasonable efforts will be made by my Department to continue supporting the provision of services dealing with domestic and sexual abuse within available resources.

Now, the defence of this cut will be that it does not affect frontline services: SAFE Ireland doesn’t provide them. And, to be fair to Minister Shatter, the cut was not made by his department but by one run by a party colleague. Nevertheless, the work of SAFE Ireland was important and the funding not excessive. In fact, the move by the HSE appears to be a redirection of funds rather than a full cut. According to the director of SAFE Ireland:

[The HSE] say they are going to use the money instead to commission a number of pieces of work towards the implementation of their action plan on domestic violence.

SAFE Ireland is part of the implementation infrastructure for the delivery of the government strategy on domestic, sexual and gender based violence.”

This may be the shape of things to come: the economic environment used as justification not only for cuts in funding to NGOs and service providers who rely on State funding, but also as justification for the redirection of remaining funds to consultants and in-house services.

It had seemed, in the crisis years of 2008 to date (one assumes the crisis has not yet passed), that the Irish Government was incapable of addressing any non-economic issue facing the State. There is, of course, more to a nation than banks and bonds, so it is refreshing to see some more items crossed off the legislative to-do list by the new Government.

Recent Irish governments have been into the habit of introducing “miscellaneous provisions” legislation: acts which contain a series of unconnected amendments to existing laws. Usually, the amendments have been on the long finger for some time or have arisen as a matter of urgency. Such legislation is often passed just before the Summer recess.

One area covered, which was expected in a stand-alone act, is the law on good Samaritans. Up to now, there was no legislation on the issue. A private members bill was introduced in 2005 by then-opposition TD Billy Timmins (FG, Wicklow) which spurred the Government to request a report from the Law Reform Commission.

That report was published in 2009 and Mr. Timmins (still in opposition) returned with a new private members bill. His 2009 proposal was, in fact, the law as proposed by the Law Reform Commission and by introducing it to the Oireachtas before the Government some additional pressure was exerted to act. Legislation was expected last year but, as with many areas of law and policy, one assumes supervening events disrupted the legislative programme and the last government never got around to it.

The 2011 Act essentially provides that good Samaritans will not be personally liable for anything done while assisting someone ill, injured or in danger. Volunteers will be similarly protected from liability when carrying out volunteer work. Of course, there are exceptions and, for example, the protection from liability is lost in the case of malice or gross negligence.

The changes do not introduce into Irish law a duty to intervene. This is in line with the recommendations of the Law Reform Commission, who concluded that, in Irish society, the duty to intervene was of a moral rather than legal quality and essentially should remain that way.

A duty to intervene can arise under Irish common law where a particular relationship exists between the parties which would justify it (Chapter 2C of the LRC report addresses this area). The Law Reform Commission recommended introducing a statutory duty of care on the part of volunteer organisations, but the 2011 Act only requires that, when considering whether a volunteer organisation owed a duty of care to someone, a court must consider whether it is just and reasonable to impose a duty “having regard to the social utility of the activities concerned.”

The 2009 private members bill contained the Commission’s proposed duty of care for volunteer organisations so it is not clear why the Government did not incorporate that wording.

Nevertheless, although lawyers are not generally fans of miscellaneous provisions legislation, the Government must be commended for acting on the issue. Through Mr. Timmins, Fine Gael have highlighted the foot dragging on this issue and have now addressed it within a reasonable time of taking office.

In a different era, conscientious objectors were given alternative means to perform their civil duties.

Daly argues that the dismissal of the complaints from individuals like Ronan Mullen was summary in nature and scant on substantive arguments. He says that it is arguable that the Constitution offers more generous protection to employees objecting to the performance of duties on religious grounds than human rights law does.

He makes the following point; crucial to the issue but which leaves quite a conundrum for the law and for society itself.

Like most, I find the sentiment behind the claim [to an exemption on religious grounds] odious and without any moral value. But a part of the point of religious freedom is that we do not adjudicate on the content of religious belief itself, only on the manner of its expression.

How can this be reconciled? Daly suggests there is a more coherent argument against a discrimination clause: one based on the extent to which one’s own right to religious freedom extends, rather than one which looks into the moral content of a belief.

The law cannot impose any burden or disability on the basis of our religious affiliation or beliefs, but this does not mean that the requirement to perform public duties contrary to religious beliefs represents a loss to religious liberty, where these requirements have no bearing on religion per se. We cannot extend the concept of religious freedom broadly that it seeks to remove all advantages that result from the performance of religious duty, or accede to claims to have the social and political world arranged so as to harmonise with the requirements of those religions best positions to achieve public status and recognition. We cannot force persons to sell alcohol, but their religious freedom could not compensate them for any lost opportunities they might suffer on this count.

I had made the point that, in so far as Senator Mullen etal were concerned, the discrimination clause argument was lost when the Equal Status Act 2000 was passed by the Oireachtas. However, the civil partnership debates have shown that the issue has not gone away and, in future debates, Daly’s reasoning is likely to provide a more solid (and less heated) basis on which arguments from objectors could be countered.

The Civil Partnership Bill 2009, one of the most significant pieces of Irish law in the past few decades, has passed through the Dáil. Therefore, it is destined to become law but will first have to pass the Seanad and receive the Presidential signature. It will probably not take full effect until 2011, when the tax and social welfare laws have been amended in line with it and preparations are made to formalise civil partnerships.

I’ve written before about Part 15 of the Bill, which deals with cohabitants. This has received less attention, understandably, than the civil partnership elements of the law but Part 15 applies to all relationships, whether homosexual or heterosexual in nature. Amendments have been made to Part 15 so that cohabitants will have to live together for 5 years before their rights arise (2 years if dependent children are involved) rather than the original 3 year qualification period proposed in the first draft of the Bill.

Professor John Mee has made a detailed critique of the legislation, primarily pointing out drafting errors and ambiguities in the Bill. He also made general observations that Part 15 might do more harm than good. These points do not appear to have been addressed. Nor does the Minister appear to have amended the title to highlight the cohabitant elements, as was expected.Update: via Maman Poulet I learn that this has now happened and the legislation bears this tongue-twister of a name: the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009.

Incidentally, there have been some suggestions (mostly from the odd Fianna Fáil backbencher) that the legislation is a Green Party measure, though Fianna Fáil’s manifesto for the 2007 general election (which predated coalition talks with the Green Party) contained a commitment to introduce the legislation.

Going to court is rarely pleasant. Even if you’re attending for a good reason, such as naturalisation or obtaining a licence, the courtroom retains the atmosphere of a place of justice, where issues of guilt are decided and penalties handed down.

If you are unfortunate enough to be summoned to court (see here for the difference between a summons and a charge sheet), there is a lot of good information available online.

The Director of Public Prosecutions has published a guide to attending court as a witness. The DPP’s guidelines for prosecutors also provide background information to the nature of criminal prosecutions in Ireland.

The Irish Council for Civil Liberties has published a very useful guide to your rights in the context of the criminal justice system and garda powers.

For the ordinary citizen, the District Court is that which they are most likely to encounter. It generally deals with what can be considered to be less serious crimes and for civil cases with a value of up to €6,348.69. To take two common examples: one might have to attend the District Court for an alleged road traffic offence or in relation to a relatively small contractual dispute. (The Small Claims Court is, in fact, part of the District Court.)

If charged with a crime at the upper end of the District Court’s jurisdiction, you are likely to have consulted a solicitor. This will usually involve a potential prison sentence and if a solicitor is not on record the District Judge will recommend that a solicitor be engaged. The Judge might invite the accused person to talk to one of the solicitors already in court. Legal aid may be applied for depending on the accused’s circumstances.

But what of less serious charges, like those arising from unpaid fixed charge notices or for non-display of tax or NCT discs? Is a solicitor required for a court appearance? The short answer is: no.

However:

If you are not prepared to represent yourself in court you may wish to engage a solicitor. If you represent yourself, you might not have to do much talking but the courtroom can be a busy and intimidating place. Many people prefer to outsource the appearance to a solicitor. Engaging a solicitor does not guarantee you won’t have to speak: a judge can always ask you questions or swear you in to give evidence.

If you are unsure as to your guilt or innocence, how to plead, whether the gardaí have complied with applicable requirements or whether your rights have been affected, you should discuss this with a solicitor. If wish to plead not guilty you can still appear in person and do it yourself.

Often, the main reason for engaging a solicitor is that a solicitor working in the district will be familiar with the practices and procedures of the local court and District Judge. (S)he will be able to advise on all aspects of court hearings in that District and how to prepare for an appearance. (S)he will also be able to provide guidance in relation to what penalties might be expected if found guilty.

Depending on the charge, previous record and the practice of the District Judge, it might not be necessary to attend court on the day if a solicitor is on record. If there is a valid reason why you cannot be in court on the day your charge(s) is to be tried, your solicitor can attend and seek an adjournment to a later date.

Engaging a solicitor is not a silver bullet and it is never possible to guarantee a particular outcome. Nevertheless, given that most people are unfamiliar with the courts system, there is a benefit in getting help from someone who appears in court on a regular basis.

My own party’s 2007 manifesto contained the clear commitment that, “based on our republican ethos and building on the agenda for equality to which we are committed” Fianna Fáil, if re-elected, would introduce civil partnership legislation in order that same sex couples could live in a supportive and secure legal environment. Today, through the Civil Partnership Bill 2009, the Government responds to these commitments.

The Bill has attracted a good deal of controversy and debate: almost all relating to the provisions affecting civil partnership. It is understandable that the elements of the Bill most relevant to same-sex couples will consume most of the attention given to the legislation, but this is at the expense of provisions which are almost as significant and which affect all genders and orientations.

Marriage, though mostly thought of in terms of emotional bonds and religious significance, is primarily a legal status which confers benefits and imposes obligations on the parties to the marriage. Marriage has legal consequences for a wide range of personal issues including finances, children, inheritance and domestic violence.

Most of these benefits and obligations do not arise in the case of non-marital relationships, especially when there are no children of the relationship. The phrases “common law wife” and “common law husband” have no legal significance. The Bill, however, proposes to legislate for a form of common law marriage by imposing consequences on parties by default; most likely without the knowledge of many persons likely to be affected.

Part 15 of the Bill deals with the rights of cohabitants, defined as adults living together as a couple in an intimate and committed relationship. You might wonder what constitutes “an intimate and committed relationship”. It is not defined, but section 170(2) sets out the criteria to be considered when determining whether or not two persons are cohabitants. Subsection (3) clarifies that sexual activity is not a determinative factor.

The consequences of the Bill arise in the case of “qualified cohabitants”: cohabitants who, immediately before their relationship of cohabitation ended (whether through death or otherwise) were living together as a couple for three years or more. This qualification period is reduced to two years when the couple have had a child. When a cohabitation relationship breaks down, a qualified cohabitant will have two years in which to bring applications to the courts for maintenance, property and/or pensionadjustment orders, similar to those applications a separated spouse or civil partner can make.

It is claimed that section 199 of the Bill allows cohabitants to opt-out of Part 15. That section provides:

Notwithstanding any enactment or rule of law, cohabitants may enter into a cohabitants’ agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise.

Such an agreement can provide that neither party may apply for relief in the terms outlined in Part 15. However, for the agreement to be valid certain criteria must be satisfied:

the cohabitants must each receive independent legal advice before entering into it, or receive legal advice together and waive in writing the right to independent legal advice;

the agreement must be in writing and signed by both cohabitants; and

the general law of contract must be complied with.

So: anyone wishing to cohabit who does not want Part 15 to apply to them will have consider the legislation within the first 2 or 3 years of cohabitation, visit their solicitor(s) and enter into a quasi-prenuptial agreement.Ironically, the legal status of prenuptial agreements in Ireland remains uncertain, yet the same type of agreement is being legislated for in the case of parties who have not entered into a formal relationship.

Even if a cohabiting couple have the foresight and diligence to enter into a cohabitation agreement, a trapdoor awaits in section 199(4):

The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice.

Therefore, a qualified cohabitant can never be certain as to whether Part 15 will apply or not; at least not until the relevant two/three years have passed from the breakdown of the relationship and an application can no longer be made for relief.

Two leading academics have publicly called on the Government to drop Part 15.

Ruth Deech, professor of law at London’s Gresham College, said the Irish law was set to be a “windfall for lawyers but for no one else except the gold-digger”. She said it was wrong to impose the penalties of a “failed marriage” on couples who may be trying out their relationship before marrying. “There should be a corner of freedom where couples may escape family law with all its difficulties. Cohabitation is not marriage, now or historically,” said Prof Deech, a vocal critic of regulating domestic partnerships.

While most family lawyers and academics here broadly welcome plans to protect vulnerable cohabitants, many have serious concerns over the detail. UCC law professor John Mee said the aspects of the Bill relating to cohabiting couples should be scrapped, as they could do more damage than good.

“The well-meaning, but seriously flawed, redress scheme should be scrapped and any immediate reform should be targeted on specific areas such as succession and taxation,” he said. “This kind of limited scheme may create a false sense of security for cohabitants, who may assume that the new law will protect them and fail to take steps to safeguard their separate property rights,” Prof Mee said.

The whole question is a very difficult one, since people’s motives may change over time. Consider the case of a couple who move in together at an early stage in their relationship, seeing their cohabitation as a trial period before a possible marriage. If, for some reason (probably the reluctance of one partner) they never actually marry, they will not necessarily separate. Many of the cases in this area involve relationships which drift on for many years, even after it has become apparent that the originally envisaged marriage will never take place. Such a relationship begins as a ‘trial marriage’ and ends, in effect, as an alternative to marriage.

The All-Party Committee, having examined the issue of cohabitation, concluded:

It can be inferred that cohabiting heterosexual couples, who by definition have opted out of marriage, would expect the state nevertheless to respect their family life and protect it.

This may be correct, but how far would unmarried couples expect such protection to extend?

Part 15 of the Bill represents a significant change to the law and will affect a huge swathe of the population. It deserves to be drafted and debated as an independent piece of legislation.

Updates & more

The Irish Farmers’ Association called on the Government to withdraw Part 15 of the Bill (1 April 2010).

The IFA press release was followed very quickly by indications that the Government would change the name of the Bill to the Civil Partnership and Cohabitation Bill (4 April 2010). It may also lengthen the qualification period for cohabitants to five years.

Suzy Byrne has blogged about the IFA comments and the proposed changes over on Maman Poulet.